No Fault Divorce
A no fault divorce refers to a type of divorce in which the spouse that is filing for divorce does not have to prove any fault on the part of the other spouse. All a spouse has to do is give any reason that the state honors for the divorce. The most commonly given reason is "irreconcilable differences" or an "irreparable breakdown of the marriage." These are just fancy ways of saying that the couple does not get along and that the marital relationship cannot be repaired. A spouse cannot object to another's petition for no fault divorce, as that objection itself is viewed by the court as an irreconcilable difference.
All states recognize no fault divorces, but some states require that the spouses live separately for a designate period of time before either of them can file for a divorce.
Fault divorces are not as common, and in fact, most states no longer even recognize them. In the states that do recognize them, one of the spouses requests that a divorce be granted based on some fault of the other spouse. The most common grounds for granting a fault divorce are:
No state requires the spouses seeking a fault divorce to live apart for a specific period of time, unlike a no fault divorce. Proving fault also often provides the spouse without fault with a larger portion of the marital property or support. These two characteristics make a fault divorce more attractive to some people.
When both spouses seek a fault divorce and can both prove the other spouse is at fault, the court decides which one is least at fault. That party will be granted the divorce. This is called "comparative rectitude." This doctrine was created to address the problem of courts granting neither party a divorce if they were both at fault. Courts have a public policy interest in not forcing two people to stay married if they don't want to be.
Defenses to a Fault Divorce
Unlike a no fault divorce, a spouse can object to a fault divorce by disproving or presenting a defense to the fault complained of. The following is a list of common fault divorce defenses:
Proving any of these defenses can be costly, timely, and often involves the use of witnesses. Furthermore, courts have an interest in not forcing people to stay married who don't want to be married, and so usually grant divorces to people who ask, despite defenses given by the other spouse. These reasons typically defer people from attempting defenses.
Residency Requirements for Filing for Divorce
Because state laws vary regarding fault divorce and no fault divorce, it is important to understand where you or your spouse could potentially file for divorce. Most states have a residency requirement, meaning that at least one of the spouses must have been a resident of that state for a specified length of time--usually six months to one year--in order to file for divorce there. However, Washington, South Dakota, and Alaska have no required length of time. To file in one of those states, you merely need to be a resident of that state at the time you are filing.
It is in your best interest to have your divorce filed in the state you are living in. Whichever court orders the divorce decree is the same court that must hear all other matters, including changes. For example, if your spouse files for and receives a divorce in Illinois, and the two of you want to revise your child custody arrangement, you must return to that Illinois court that granted the initial divorce.
Divorce Orders of One State, Valid in All States
Courts of all states like to honor decisions made by courts of other states, because courts want the same respect paid to their decisions. Therefore, going back to the preceding example, if your spouse files in Illinois, this divorce and all of the court orders related to it, apply to you in your Missouri home.
However, the court may not have personal jurisdiction over the nonresident spouse at the time of the divorce proceeding, rendering certain court decisions invalid. A lack of personal jurisdiction means that although the divorce decree is valid, other related decisions, such as child custody, support, and property division, may be invalid.
If you receive papers from a foreign country, keep in mind there are many jurisdictional issues, such as what country is involved, where the spouses live or have lived, and where the children (if any) live.
If You're Getting Divorce, You Probably Need an Attorney
The concepts of a no fault divorce and a fault divorce are state-specific and can also be confusing. If you aren't sure of the laws in your jurisdiction, your best course of action is to first speak with an experienced divorce lawyer who can go over the laws of your state and provide you with the best legal options for your case.